United States Court of Appeals For the First Circuit

No. 19-1238

UNITED STATES OF AMERICA,

Appellee,

v.

LEONARDO ACEVEDO-VÁZQUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Boudin, and Lynch, Circuit Judges.

Eric Alexander Vos, Federal Public Defender, Franco L. Pérez- Redondo, Assistant Federal Public Defender, Supervisor, Appeals Section, and Joseph A. Niskar, Assistant Federal Public Defender, on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, Jonathan E. Jacobson, Assistant United States Attorney, on brief for appellee.

October 6, 2020 BOUDIN, Circuit Judge. On October 7, 2016, Leonardo

Acevedo-Vázquez stole a Cadillac Escalade in Bayamón, Puerto Rico

while pointing a .38 caliber revolver at its owner. The police

found the stolen car and arrested Acevedo-Vázquez and his

accomplice. Acevedo-Vázquez pled guilty to the carjacking, see

(1), and to using a firearm during and in relation to

a crime of violence, see

(c)(1)(A)(ii).

By the time of his sentencing, on February 21, 2019,

Acevedo-Vázquez was already serving a thirty-year prison sentence

for unrelated offenses in the Commonwealth of Puerto Rico, and the

prosecution agreed to recommend that any prison time related to

the carjacking be served concurrently to that sentence.

For the carjacking, Acevedo-Vázquez's presentence report

calculated a recommended range of seventy to eighty-seven months

in prison pursuant to the federal sentencing guidelines. At

sentencing, Acevedo-Vázquez requested that he be sentenced to the

low-end of that range and that the prison time run concurrently to

the Commonwealth sentence. For use of a firearm during and in

relation to a crime of violence, he requested the statutory minimum

of five years running consecutively to the Commonwealth sentence.

Acevedo-Vázquez's attorney also emphasized that Acevedo-

Vázquez suffers from drug addiction, ADHD, familial abandonment,

and severe depression and asked the district court to take those

circumstances into account in fashioning his sentence, to allow

‐2‐ him to earn his GED, and to ensure that he participate in drug

treatment programs, mental health programs and vocational training

programs while in prison.

The district court sentenced Acevedo-Vázquez to eighty-

seven months on the carjacking to be served consecutively to the

Commonwealth sentence. The court said that it had reviewed the

presentence report and "considered the other sentencing factors

set forth in Title

(a)" but

that it found "the sentence to which the parties agree does not

reflect the seriousness of the offense, does not promote respect

for the law, does not protect the public from further crimes by

Mr. Acevedo, and does not address the issues of deterrence and

punishment." AA. 60-62. The court also sentenced Acevedo-Vázquez

to five years for use of a firearm and five years of supervised

release.

Acevedo-Vázquez appealed. On appeal, he contends that

his sentence was (1) procedurally unreasonable because "the

district court abandoned its sentencing discretion by not

considering the specific circumstances warranting a partially

concurrent sentence" and (2) substantively unreasonable.

Appellant's Opening Br. 13.

Review of the reasonableness of a sentence is for abuse

of discretion if the objection was preserved or for plain error if

the challenge was raised for the first time on appeal. See United

‐3‐ States v. Arroyo-Maldonado,

(1st Cir. 2015). As

soon as the sentence was announced, Acevedo-Vázquez's attorney

preserved an objection that the sentence was substantively and

procedurally unreasonable, arguing that the aggregate sentence of

42 years did not "take[] into consideration sufficiently [Acevedo-

Vázquez's] mental illness, his need for drug treatment, and the

facts and circumstances leading up to the commission of this

offense." AA. 66.

The Supreme Court has laid out a two-part test for

assessing the reasonableness of a sentence. First, an appellate

court must

ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-- including an explanation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed . . . [taking] into account the totality of the circumstances, including the extent of any variance from the Guidelines range.

Gall v. United States,

(2007).

This court knows "that the district court 'possesses a

number of institutional advantages, including a superior coign of

‐4‐ vantage, greater familiarity with the individual case, the

opportunity to see and hear the principals and the testimony at

first hand, and the cumulative experience garnered through the

sheer number of district court sentencing proceedings that take

place day by day.'" United States v. Madera-Ortiz,

(1st Cir. 2011) (quoting United States v. Martin,

(1st Cir. 2008)). It thus "grant[s] district courts wide

latitude in making individualized sentencing determinations."

Martin,

.

Procedural Reasonableness. "[I]f a term of imprisonment

is imposed on a defendant who is already subject to an undischarged

term of imprisonment, the terms may run concurrently or

consecutively."

(a). A district court "in

determining whether the terms imposed are to be ordered to run

concurrently or consecutively, shall consider, as to each offense

for which a term of imprisonment is being imposed, the factors set

forth in section 3553(a)"

(b). Those factors

include the nature and circumstances of the offense, the history

and characteristics of the defendant, the range proposed by the

guidelines, and any pertinent policy statements--in this case

U.S.S.G. § 5G1.3(d). See

(a).

Acevedo-Vázquez claims that the court erred by failing

to consider the § 3553(a) factors, including those enumerated in

U.S.S.G. § 5G1.3(d) cmt. 4, when it decided that his federal

‐5‐ sentence would run consecutively to his Commonwealth sentence. In

this case, however, the district court explicitly stated that it

considered all of the § 3553(a) factors. See generally, United

States v. Clogston,

(1st Cir. 2011). In fact,

when fashioning Acevedo-Vázquez's sentence, the court recommended

that Acevedo-Vázquez participate in mental health, drug, and

alcohol treatment, any available vocational programs, and courses

"leading to a high school degree," demonstrating its awareness of

his circumstances.

Furthermore, the district court referenced the § 3553(a)

factors when it explained why it chose a prison term at the high-

end of the sentencing guidelines range, emphasizing the violent

nature of the offense and the need to protect the public. That

explanation was sufficient to justify the district court's

decision to impose its sentence consecutively, rather than

concurrently, to the Commonwealth sentence. See United States v.

Caballero-Vázquez,

(1st Cir. 2018).

Substantive Reasonableness. "The 'linchpin' of our

review for substantive reasonableness is a determination about

whether the sentence reflects 'a plausible . . . rationale and a

defensible result.'" United States v. King,

(1st Cir. 2014) (quoting Martin,

). Here, the

district court's determination fell well within "the expansive

boundaries of the entire range of reasonable sentences." United

‐6‐ States v. Vargas-Dávila,

(1st Cir. 2011)

(internal quotation omitted).

Affirmed.

‐7‐